Citation Nr: 0422413
Decision Date: 08/16/04 Archive Date: 08/20/04
DOCKET NO. 03-03 636 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to separate ratings for the right ear and left
ear for service-connected tinnitus, currently evaluated as 10
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Tanya A. Smith, Associate Counsel
INTRODUCTION
The veteran had active service from November 1959 to October
1961.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana.
FINDING OF FACT
The original and revised versions of Diagnostic Code 6260
authorize a single 10 percent rating for tinnitus, regardless
of whether it is perceived in one ear, both ears, or in the
head, and precludes the assignment of separate ratings for
bilateral tinnitus.
CONCLUSION OF LAW
Entitlement to separate ratings of 10 percent for the right
ear and left ear for service-connected tinnitus is not
warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38
C.F.R. § 4.87, Diagnostic Code 6260 (2002); 38 C.F.R. §§
3.159, 4.87, Diagnostic Code 6260 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
As a preliminary matter, the Board notes that the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000) (VCAA) redefines the obligations of VA with
respect to the duty to assist and includes an enhanced duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. 38
U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159
(2003).
The Board, however, notes that in VAOPGCPREC 2-04, the VA
General Counsel held as follows:
Under 38 U.S.C. § 5103(a), the Department of
Veterans Affairs is not required to provide notice
of the information and evidence necessary to
substantiate a claim for separate disability
ratings for each ear for bilateral service-
connected tinnitus because there is no information
or evidence that could substantiate the claim, as
entitlement to separate ratings is barred by
current Diagnostic Code (DC) 6260 and by the
previous versions of DC 6260 as interpreted by a
precedent opinion of the General Counsel that is
binding on all Department officials and employees.
VAOPGCPREC 2-04 at p. 4.
The Board notes that it is not the factual evidence that is
dispositive of the present appeal, but rather an
interpretation and application of a regulation that requires
that a single rating be assigned for tinnitus. See Mason v.
Principi, 16 Vet. App. 129, 132 (2002) (providing that where
the law as mandated by statute, and not the evidence, is
dispositive of the claim, the VCAA is not applicable). In
VAOPGCPREC 5-04, the VA General Counsel further elucidated
that under 38 U.S.C.A. §§ 5103(a), 5103A, VA is not required
to provide notice of the information and evidence necessary
to substantiate a claim where that claim cannot be
substantiated because there is no legal basis for the claim
and VA is not required to assist a claimant in developing
evidence to substantiate a claim where there is no reasonable
possibility that such aid could substantiate the claim
because there is no legal basis for the claim. Accordingly,
the Board will proceed with appellate review.
In the rating decision on appeal, the RO granted service
connection for tinnitus and assigned a 10 percent evaluation
under 38 C.F.R. § 4.87, Diagnostic Code 6260 (2000-2002). In
the Notice of Disagreement, the veteran contended that he
should be assigned separate evaluations of 10 percent for
each ear for service-connected tinnitus.
The regulations pertaining to the evaluation of diseases and
injuries of the ears were revised effective June 10, 1999.
64 Fed. Reg. 25,202 (1999) [codified at 38 C.F.R. §§ 4.85-
4.87] The former rating criteria provided a maximum 10
percent rating for persistent tinnitus as a symptom of head
injury, concussion, or acoustic trauma. 38 C.F.R. § 4.87a,
Diagnostic Code 6260 (1998). The revised regulation provided
a
maximum 10 percent rating for recurrent tinnitus, regardless
of its etiology. A note following the revised diagnostic
code indicates that a separate evaluation for tinnitus may be
combined with an evaluation under diagnostic codes 6100,
6200, 6204, or other diagnostic code, except when tinnitus
supports an evaluation under one of those diagnostic codes.
38 C.F.R. § 4.87, Diagnostic Code 6260 (2002).
The regulation was revised further in May 2003 to add two
additional notes following the diagnostic code as follows:
Note (2): Assign only a single evaluation
for recurrent tinnitus, whether the sound
is perceived in one ear, both ears, or in
the head.
Note (3): Do not evaluate objective
tinnitus (in which the sound is audible
to other people and has a definable cause
that may or may not be pathologic) under
this diagnostic code, but evaluate it as
part of any underlying condition causing
it.
68 Fed. Reg. 25,822, 25,823 (May 14, 2003) (effective from
June 13, 2003).
In VAOPGCPREC 2-03, the VA General Counsel notes that
"tinnitus is the perception of sound in the absence of an
acoustic stimulus." VAOPGCPREC 2-03 at p. 2 (citing The
Merck Manual 665 (17th ed. 1999)). The VA General Counsel
referenced the notice of proposed rulemaking resulting in the
amendment to Diagnostic Code 6260 in May 2003 for the medical
explanation of tinnitus:
True (subjective) tinnitus does not
originate in the inner ear, although
damage to the inner ear may be a
precursor of subjective tinnitus. It is
theorized that in true tinnitus the brain
creates phantom sensations to replace
missing inputs from the damaged inner
ear, similar to the brain's creation of
phantom pain in amputated limbs. . . .
True tinnitus, i.e., the perception of
sound in the absence of an external
stimulus, appears to arise from the brain
rather than the ears.
VAOPGCPREC 2-03 at p. 2 (citing Schedule for Rating
Disabilities: Evaluation of Tinnitus, 67 Fed. Reg. 59,033,
59033 (Sept. 19, 2002) and Diseases of the Ear, H. Ludman,
and T. Wright, 6th ed., chapter 11; Phantom auditory
perception (tinnitus): mechanisms of generation and
perception, Neuroscience Research 8:221-2, P. Jasterboff,
1990; and Mechanisms of Tinnitus. Allyn and Bacon, 1995, J.
Vernon and A. Moller (Eds)).
Based on this medical explanation, the VA General Counsel
found that "the perception of noise is the disability
identified in true tinnitus, and the source of this perceived
noise is not in either or both ears. The undifferentiated
nature of the source of the noise that is tinnitus is the
primary basis for VA's practice, as reflected in the notice
of proposed rulemaking, of rating tinnitus as a single
disease entity." VAOPGCPREC 2-03, p. 3. The VA General
Counsel therefore determined that the original and revised
versions of Diagnostic Code 6260 authorized a single 10
percent rating for tinnitus, regardless of whether it was
perceived as unilateral, bilateral, or in the head, and
precluded the assignment of separate ratings for bilateral
tinnitus. Accordingly, the veteran is not entitled to
separate evaluations of tinnitus for each ear.
The Board finds that application of the revised regulation
promulgated in May 2003 to the veteran's claim, does not
create a genuinely retroactive effect in which its
application extinguishes the veteran's right to benefits for
periods before the regulation took effect on June 13, 2003.
The Board also finds that the veteran is not entitled to
separate evaluations for tinnitus of both ears based on VA
regulation 38 C.F.R. § 4.25(b) (2003), which notes that
except as otherwise provided in the Rating Schedule,
disabilities arising from a single disease entity are to be
rated separately.
In VAOPGCPREC 7-03, the VA General Counsel held that the
United States Court of Appeals for the Federal Circuit in
Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), overruled
Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it
conflicts with the precedents of the Supreme Court and the
Federal Circuit. Of particular significance, the General
Counsel held as follows with respect to Karnas:
Karnas is inconsistent with Supreme Court and
Federal Circuit precedent insofar as Karnas
provides that, when a statute or regulation changes
while a claim is pending before the Department of
Veterans Affairs (VA) or a court, whichever version
of the statute or regulation is most favorable to
the claimant will govern unless the statute or
regulation clearly specifies otherwise.
Accordingly, that rule adopted in Karnas no longer
applies in determining whether a new statute or
regulation applies to a pending claim.
VAOPGCPREC 7-03 at p. 17.
The Board finds that application of the May 2003 regulation
to the veteran's claim does not have an illegal retroactive
effect. The notice of final rule notes the following:
This document amends the Department of Veterans
Affairs (VA) Schedule for Rating Disabilities to
state more explicitly the method of evaluation of
tinnitus under diagnostic code 6260 in the portion
of the rating schedule that addresses evaluation of
disabilities of the ear. The intended effect of
this action is to codify current standard VA
practice by stating that recurrent tinnitus will be
assigned only a single 10-percent evaluation
whether it is perceived in one ear, both ears, or
somewhere in the head.
See Schedule for Rating Disabilities: Evaluation of
Tinnitus, 68 Fed. Reg. 25,822, 25,822 (May 14, 2003)
(emphasis added).
The VA General Counsel maintains that the amendment restated
in more explicit
terms the rule reflected in prior VA regulations that only a
single 10% rating for tinnitus is authorized regardless of
whether tinnitus is perceived as unilateral, bilateral, or in
the head. VAOPGCPREC 2-03. As such, application of the May
2003 regulation to the veteran's claim does not produce a
disfavored retroactive effect. VAOPGCPREC 7-03.
Moreover, while VA regulation 38 C.F.R. § 4.25(b) provides
that disabilities arising from a single disease entity are to
be rated separately, the assignment of separate ratings is
dependent on a finding that the disease entity is productive
of distinct and separate symptoms. 38 C.F.R. § 4.14 (2003);
Brady v. Brown, 4 Vet. App. 203, 206 (1993). The evaluation
of the same "disability" or the same "manifestations"
under various diagnoses is not allowed. Id. As the
precedential opinions from the VA General Counsel opinion
make clear, the disease entity of "tinnitus" has but one
symptom-the perception of sound in the brain without
acoustic stimulus. Since tinnitus does not produce separate
and distinct symptoms, the assignment of separate ratings for
the right and the left ear is not appropriate.
For the reasons and bases provided above, the Board finds
that all versions of Diagnostic Code 6260 preclude the
assignment of separate disability ratings for bilateral
tinnitus and that 10 percent is the maximum rating available
for tinnitus. Accordingly, the veteran is not entitled to
the relief sought on appeal.
Finally, any limits on the veteran's employability due to his
tinnitus were contemplated in the award of a 10 percent
rating. The Board finds that the evidence does not show that
the veteran's tinnitus has markedly interfered with his
employment status beyond that interference contemplated by
the assigned evaluation or necessitated frequent periods of
hospitalization during the course of this appeal. The
percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity
resulting from such injuries and their residual conditions in
civil occupations. 38 C.F.R. § 4.1 (2003). As such, the
Board is not required to remand this matter to the RO for the
procedural actions outlined in 38 C.F.R. § 3.321(b)(1)
(2003).
ORDER
Entitlement to separate ratings of 10 percent for the right
ear and left ear for service-connected tinnitus is denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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